St. Cloud NAACP prepares to enforce the Constitution-3

This is the third in a series on St. Cloud NAACP's impending litigation to enforce Minnesota's constitutional education clause as to the St. Cloud District for students with educational disadvantages--lower income students, students of color, students with dyslexia, immigrants/first generation and English language learner students.  When we focus on the students in these categories, of course, we are categorizing them statistically.   We cannot avoid doing that, because both federal legislation and the World's Best Workforce legislation expect us to assure that students in those statistical categories perform on the average as well as others.   There are plenty of students in these categories who are thriving educationally.   But we often refer to those students as "beating the odds."

In its recent Cruz-Guzman decision, the Minnesota Supreme Court reaffirmed that Minnesota’s constitutional education clause demands a public education system that provides an education to all children that meets state standards. The Court wrote:

We specifically stated that “there is a fundamental right, under the Education Clause, to a ‘general and uniform system of education’ which provides an adequate education to all students in Minnesota.” Id. at 315. (Cruz decision explaining Skeen)

We declared that the Education Clause “requires the state to provide enough funds to ensure that each student receives an adequate education We declared that the Education Clause “requires the state to provide enough funds to ensure that each student receives an adequate education ….an adequate level of education which meets all state standards, . “

 What is the basis for our claim that Minnesota is not providing enough funds to ensure that each student receives an adequate education... which meets all state standards?    Actually, this is a slam-dunk legal case, and it is really surprising that nobody has yet brought a case to make it.  

The case to establish Minnesota's funding failure has multiple elements, each of which is sufficient alone to demand constitutional relief.   However, the most straightforward and easiest to prove is the state's abject failure to fund the cost of providing state mandated special education.    The state keeps track of the cost of providing special education to state standards, in fact that is the only part of public education that the state carefully tracks for costing purposes.  

Statewide, the shortfall in funding special education to state standards is now at about $1.5 billion for the biennium, and it is scheduled to rise substantially over the next several years.    That deficit, however, is distributed irrationally, or should I say, distributed intentionally so that it hits more heavily on certain school districts like Minneapolis, St. Cloud and St. Paul, the very districts that can least afford it.  

The St. Cloud District must absorb a $12 million annual deficit, the difference between state mandated expenditures and total funding for those expenditures.  When the district tried to make some cuts, the state issued warnings to lower caseloads, raising those costs up again.  Then, amazingly, it penalized the district for increasing its expenditures  

On the average, state law requires St. Cloud to spend a $5,867 more for special education for a special education student than the state reimburses. The corresponding funding deficit for a special education student in the 7 neighboring district is $3,777--so the average deficit inflicted on St. Cloud is $2000 per student higher than neighboring districts, even though St. Cloud serves far more students with non disability related educational disadvantages.   Its like someone decided to pile on.   

When the St. Cloud NAACP brings a motion for relief, its going to be interesting to see whether the State has an explanation for why this funding debacle meets the constitutional standard.   If the state is being candid, it is going to have to recognize that it is not.   The funding simply does not provide funding necessary to meet state standards.  The fact that the state forces St. Cloud to cannibalize that money from other students with educational disadvantages surely is not an explanation:  it just compounds the constitutional violation.   

There is some hope in Governor Walz's inaugural address that perhaps he may actually fix this problem, although administration after administration has rationalized, avoided, and procrastinated.   In his address, he stated:

Disparities in our educational system based on geography, race, or economic status hold back not only our students, but our entire state from reaching its full potential. We must make Minnesota the “Education State” for all children—black, white, brown, and indigenous....Minnesotans, let’s recognize some simple truths: Education is the great equalizer of society. Education unleashes untapped potential. Education conjures the magic of promising beginnings and the grace of second chances. Putting a young child on a yellow bus to pre-kindergarten in St. Cloud can prevent him from riding a prison bus to Stillwater. Some of these truths are inspiring, others uncomfortable. But all lead us back to one of our core beliefs as Minnesotans—that every child deserves a high-quality education.

Such talk can be inspiring, but it can also be, as they say, cheap.   St. Cloud NAACP will seek promptly to require that the state fix this constitutional problem in the 2019-20 budget.    There will be those who suggest that somehow this problem should be put off, studied, or fixed in tiny baby steps.   But the constitution doesn't grant that leeway.    Let us hope that the state will actually "recognize this simple truth:"  the Supreme Court issued its constitutional standard in 1993, a quarter century ago.    Time to enforce the constitution.  

NAACP Prepares to Enforce Education Clause Part 2

I want to use this post to explain why we're sharing NAACP's litigation objectives in a public forum.    Some time ago, Chris Stewart invited me to a pizza for progress discussion in which we talked about enforcing the constitutional right to an education in Minnesota, among other things.  During the discussion, the topic of choice is yours arose, and some persons expressed the concern that it hadn't been fully responsive to the community it was designed to serve.   I don't have a position on that, because I wasn't involved.   But, it points out how important it is to conduct a litigation like this in a way that responds to and includes the people it is designed to serve. 

Currently, there is a new integration suit pending in the Twin Cities, the Cruz-Guzman litigation, and its being conducted in the name of individual plaintiffs, one of whom is of course Cruz-Guzman.   The litigation is seeking to represent all students and potential students in the target districts, and one way of doing that is to conduct it as a class action.  

By way of legal background, the class action rules are designed to assure that the representatives of the class are protecting the rights of the persons they purport to represent.    For example, if Sadie buys a television from a local store and discovers that the television is being sold all over Minnesota deceptively, Sadie might bring a class action seeking damages for members of the class.   The mere fact that she bought the television, however, doesn't allow her to represent everyone else who bought a television of that kind.   Maybe many of the people who bought the television are very satisfied.  Or, maybe they don't want Sadie to represent them, because they have their own attorney, or they think that Sadie won't do a good job representing them, or that Sadie will give up too easily and take too little, or try to accept a big settlement for herself, in return for selling out the rest of the injured parties.

So, the class action rules require Sadie to file a motion to seek court permission to represent the class.  Once the class action is certified, then Sadie has a fiduciary responsibility to the class members, and her attorneys fees, and any settlement are subject to court approval to protect the rest of the class.  Because Sadie's case is seeking damages, all of the other potentially injured parties will get notices as the litigation progresses, and if a settlement is proposed, they will get to comment on that.  Moreover, they will be given an opportunity to "opt out" of the lawsuit, so that Sadie's case won't impact them. 

In the case of a class action like Cruz-Guzman, the requirements for class certification are somewhat relaxed.  The relief is going to be injunctive or declaratory.   If there will be changes in the delivery of education, it is likely to impact everyone, or nobody.   However, the representatives still have to prove that they will represent the class faithfully.   In fact, in the Minneapolis litigation, the state is challenging certification on the grounds that the plaintiffs do not represent all of the class, and in fact, that the class is divided over the claims and the relief requested.   

In the case of an organization, the organization brings the case to further organizational goals, on behalf of its members and the people that it serves.   One of the things that St. Cloud NAACP is doing to assure that it faithfully represents the impacted families is to launch efforts to build links to those who will benefit from the litigation.   Sharing its intentions and inviting feedback is one aspect of that effort.   NAACP, of course, has special credibility and experience in representing the interests of families with educational challenges.  But its still important that the organization works hard to manage its efforts in the best interests of students and families.  To this end, initiatives to link to state and local organizations have been launched, such as ACLU, the National NAACP, AMSD, Isaiah, and others.  St. Cloud NAACP plans reporting and continuing to listen.

In St. Cloud, NAACP has reached out to the school district leadership, United Way, Partners for Students Success, Promise Neighborhoods, and is assembling a stakeholder advisory panel.  Minnesota's education system needs fixing, and its going to take a lot of thinking and listening to repair it.  To this end, the next post will continue to discuss why the system is failing the St. Cloud and other districts that serve large numbers of students with educational disadvantages, and what NAACP proposes to do about that. 

St Cloud NAACP Prepares to Enforce Minnesota Education Clause

Within a month, the St. Cloud NAACP will be commencing a suit to enforce Minnesota's Constitutional Education Clause on behalf of students with educational disadvantages, the students that Minnesota is leaving behind educationally and in terms of education funding.   This post begins a discussion of the reasons for that suit, the goals of that suit, and how the St. Cloud NAACP intends to assure that those students and those who serve and care for them the most have a voice in the ultimate course of the litigation.

In Sunday's St. Cloud Times, an article by Patrick Henry provides one window into the issues facing Minnesota education and the families and children in St. Cloud in his Open Letter to Legislators calling upon the legislature to fix the education funding deficit.  You can read that article by following the link.    Mr. Henry's excellent article also provides a link to my law review article with the legal background for folks who want a deeper understanding.  It is titled "Minnesota's Education System is Unconstitutional:  Will Someone Bring a Compelling Case?"

On January 20, 2019, the St. Cloud NAACP holds its annual Freedom Fund Banquet to coincide with the national Martin Luther King celebration.  (For tickets, click the link).   I've been invited to give the keynote speech, and that speech will focus on and highlight the St. Cloud NAACP's plans to enforce the constitution.   This litigation is a natural outgrowth of the national and local NAACP's emphasis on education as a critical component of the economic and political freedom of all Americans. 

In education, the national NAACP works to ensure that all disadvantaged students and students of color are on the path to college or a successful career by ensuring access to great teaching, equitable resources, and a challenging curriculum. NAACP is dedicated to eliminating the severe racial inequities that continue to plague our education system. NAACP’s ultimate goal is that every student of color receives a quality public education that prepares him or her to be a contributing member of a democracy. In education, the national NAACP works to ensure that all disadvantaged students and students of color are on the path to college or a successful career by ensuring access to great teaching, equitable resources, and a challenging curriculum. NAACP is dedicated to eliminating the severe racial inequities that continue to plague our education system. NAACP’s ultimate goal is that every student of color receives a quality public education that prepares him or her to be a contributing member of a democracy. 

 You can reach the event information for the Freedom Fund Banquet, which is the principle annual fund raiser for St. Cloud NAACP by clicking here.   In future posts, we'll provide more information on the legal underpinnings of the suit, and describe its objectives.   The proceeds of the banquet will not be going to the litigation.  The litigation is being handled pro bono: without charge.  The proceeds will fund NAACP's continuing direct efforts in the community as before.

The primary goal of the litigation is to fix our education system for the students that Minnesota is leaving behind. Students get left behind, largely, because they come to school with disadvantages, but with great potential.   Some people forget that the purpose of Minnesota's education clause was to provide an education to students with educational disadvantages:  immigrants, non-English speakers, so-called first generation students from families that lacked the education that was needed to compete in the economy of the time.  

When people tell you that educational disadvantages are the fault of the people at home, remind them then, that our education system wasn't crafted, nor was the constitutional clause written, to assure the education of the fortunate.   The goal was to make public education the great equalizing force, to assure that children who didn't get the education they needed at home would have an equal chance to compete in our society, and to participate effectively in our democracy.   In the coming posts, and at the banquet, I'll have an opportunity to discuss this in greater depth.  

One of the things that we'll explore is the way in which we intend to reach out to stakeholders in the community to assure that the impending litigation will truly benefit the persons it is designed to benefit, the students and their families, that Minnesota's educational system is now leaving behind.  NAACP will be reaching out to the organizations in the community who serve and speak for those students, to make them part of this effort.  The goal is to make sure that as the litigation goes forward, it is actually seeking solutions that will make a difference for those children.  To that end, there will be multiple opportunities for the advocates for children to have input into the goals and strategies.  More to come in the next post.